Citation Nr: 0421898
Decision Date: 08/10/04 Archive Date: 10/04/04
DOCKET NO. 03-26 215 DATE AUG 10 2004
On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to service connection for chronic back condition.
2. Entitlement to service connection for bilateral knee condition.
REPRESENTATION
Appellant represented by: American Legion
ATTORNEY FOR THE BOARD
Alexander I. Anurca, Jr., Law Clerk
INTRODUCTION
The appellant had active duty from November 1959 to November 1979.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 decision of the Department of Veterans Affairs (V A) Regional Office in Detroit, Michigan (RO).
Subsequent to the February 2003 decision, the appellant filed a notice of disagreement for an increased rating for hypertension in April 2003. However, the appellant has not submitted a substantive appeal with respect to this issue, and the appellant's VA Form 9 indicates that the only issues in which the appellant disagrees are entitlement to service connection for a bilateral knee condition and a chronic back condition. This is further reflected in the statement of accredited representative in appealed case which is devoid of any mention of the appellant's claim for an increased rating for hypertension.
Thus, the appellant has not perfected his appeal regarding the issue of an increased rating for hypertension and this issue is not before the Board for appellate review. See 38 C.F.R. §§ 20.200-20.202 (2003).
The issue of entitlement to service connection for bilateral knee condition is addressed in the remand portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part.
FINDING OF FACT
A back disability is not related to any incident in service.
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CONCLUSION OF LAW
The criteria for the establishment of service connection for chronic back disorder are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002).
REAS0NS AND BASES FOR FINDING AND CONCLUSION
Preliminary Matter: VA 's Duty to Notify and Assist
Prior to proceeding with an examination of the merits of the claims, the Board must first determine whether the appellant has been apprised of the law and regulations applicable to this matter; the evidence that would be necessary to substantiate the claims; and whether the claims have been fully developed in accordance with the Veterans Claims Assistance Act (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102,5103, 5103A, 5107 (West 2002).
The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. The VCAA further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002).
The record indicates that the appellant has been fully apprised of what evidence would be necessary to substantiate his claims, as well as informed of the specific assignment of responsibility for obtaining such evidence. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
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The record indicates that the appellant's claim was received in October 2002. In specific compliance with the Court's ruling in Quartuccio, the appellant was advised of the evidence that would substantiate his claims, and the responsibility for obtaining it, by a letter dated in January 2003. See 38 U.S.C.A § 5103(b) (West 2002) (providing in substance that after advisement to the claimant under the VCAA of any information that was not previously provided, if such information or evidence is not received within one year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application); PVA v. Secretary o/Veterans Affairs, 345 F. 3d 1334 (Fed.Cir. 2003). Thus, the appellant was advised of what evidence would substantiate his claims, and further advised of the specific allocation of responsibility for providing such evidence, prior to the initial RO adjudication of this matter. Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24, 2004),
The Board therefore finds that the foregoing information provided to the veteran satisfies the requirements of 38 U.S.C.A. § 5103 and Quartuccio in that he was notified of the evidence necessary to substantiate his claims on appeal. Under these circumstances, the Board finds that the notification requirement of the VCAA has been satisfied.
As to the appellant's claimed back disorder, a VA medical examination for the chronic back disorder is not warranted. As in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the appellant was advised of the need to submit evidence indicating an in-service incident that is competently linked to a present disorder, and the appellant has not done so. Here, as in Wells, the record in its whole, after due notification, advisement, and assistance to the appellant under the VCAA, does not contain competent evidence to suggest that the chronic back disorder is related to the appellant's military service. As will be discussed below, the sole evidence suggestive of a linkage between the appellant's lower extremity disorder and any incident of the appellant's military service emanates from the appellant, who is not competent to provide such an opinion.
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Given these, matters of record as to the appellant's .claimed back disorder, there is no competent evidence that "the disability or symptoms may be associated with the claimant's active military service." 38 U.S.C.A § 5103A(d); cf Charles v. Principi, 16 Vet. App. 370 (2002) (Holding that under 38 U.S.C.A § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a .claim, where the evidence of record, taking into .consideration all information and lay or medical evidence, [including statements of the .claimant]," and where, the .claimant had been diagnosed to have tinnitus, and had proffered competent lay evidence that he had had .continuous symptoms of the disorder [i.e., ringing in the ears] since his discharge. Because there was evidence of record satisfying two of the requirements of the statute, i.e., competent evidence of a .current disability and evidence indicating an association between the appellant's disability and his active service, but there was not of record, as relied upon in part by the Board in denying his claim, .competent medical evidence addressing whether there is a nexus between his tinnitus and his active service, VA was to provide the .claimant with a medical "nexus" examination).'
In the .circumstances of this .case, additional efforts to assist the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular .case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426,430 (1994) (remands whi.ch would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).
VA has satisfied its duties to inform and assist the appellant in substantiating his .claim for chronic ba.ck disorder at every stage of this .case. Given the development undertaken by the RO and the fa.ct that the appellant has pointed to no other evidence whi.ch has not been obtained, the Board finds that the record is ready for appellate review as to this matter.
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Merits of the Claim
The appellant contends that his current chronic back .disability is related to active military service. He argues that his service medical records show that he was .treated for a back injury after participating in a parachute jump, and that he has had continuous symptoms since the in-service incident in October 1962.
Having carefully considered the appellant's claims in light of the record and the' applicable law, the Board is of the opinion that the preponderance of the evidence is against the appellant's claim of a service connected back condition and the appeal will be denied as to this matter.
Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a) (2003)_
As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
The appellant's service medical records note that he was seen for complaints of back pain after a parachute jump in April 1963. Radiographic examination revealed five normal lumbar type vertebral bodies bearing normal relationship to each other, and there was no evidence of fracture, disc disease, or abnormalities of the lordotic curvature. During follow-up examination in June 1963, the appellant reported mild occasional symptoms relating to activity and position in the upper lumbar position. The examiner's impression was chronic mild strain, right upper lumbar paravertebral muscle.
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There are no further references in the appellant's service medical records to any back symptoms or diagnosis. While in October 1966, the appellant complained of cramping pain that spread from his back, abdomen, and testicles, the symptoms were ascertained to be due to the probable passage of a kidney stone.
The appellant proffered a letter from G.S., M.D., stating that the appellant was currently under his care for low back pain. Therefore, the appellant has confirmed that he has a current chronic back disability and the first element of Cuevas is established.
While the appellant has reported that he has had continuous back pain since the inservice treatment, such a finding is belied by the record; There are no complaints or diagnosis relating to the appellant's back in medical examinations dated in February 1968 and August 1972, and the appellant specifically denied have back trouble during his separation examination dated September 1979. Thus, the appellant is not shown to have had continuous symptomatology, or the presence of any chronic disorder since service. See 38 C.F.R. § 3.303(b) "Pertaining to chronicity of a disorder or continuity of symptoms. Under 38 C.F.R. § 3.303(b), a veteran may utilize "the chronic disease shown as such in service" provision when the evidence demonstrates: (1) that the veteran had a chronic disease in service, or during an applicable presumptive period; and, (2) that the veteran presently has the same condition. With respect to the first element there are two questions; (a) is medical evidence needed to demonstrate the existence in service or in the presumption period of such a chronic disease, or will lay evidence suffice; and, (b) must such evidence be contemporaneous with the time period to which it refers, or can postservice or post-presumption-period evidence address existence in service. Savage v. Gober, 10 Vet. App. 488 (1997).
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While the appellant has provided medical evidence suggesting that he has a current back disorder, there is no competent medical evidence of a linkage of the disorder to any incident of military service, and a grant of direct service connection is therefore not appropriate. Private medical records dated September 1993 from D.K.B., M.D., and J.K.K., M.D., are dated approximately fourteen years after the appellant left active duty, and none indicate that the claimed disorder is related to military service
Given these matters of record, there is no competent medical evidence indicating that the appellant's condition was caused by any incident of his military service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a) (2003).
The issue of causality of a disease is quintessentially one involving medical expertise. Although the appellant maintains that a connection between his disorder and his military service exists, his theory regarding this linkage is not competent evidence. It is now well-established that the appellant, as a layperson, is not qualified to render medical opinions regarding the etiology of disorders and disabilities, and his opinion is entitled to no weight. Cromley v. Brown, 7 Vet. App. 376,379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).
In view of the foregoing, the Board concludes that the preponderance of the evidence is against finding that the appellant's back condition was incurred in or aggravated by military service. Therefore, the benefit sought on appeal is denied.
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ORDER
Service connection for chronic back condition is denied.
REMAND
Having carefully reviewed the evidence of record pertaining to the appellant's claim of entitlement to service connection for a bilateral knee condition, the Board finds that additional development of the claim is necessary.
According to his service medical records, the appellant injured his left knee in a soft ball game in June 1972. The examiner reported that the appellant was unable to fully straighten or flex his knee. In a periodic examination dated August 1972, the examiner noted that the appellant had an acute left knee strain which was healing. During the appellant's pre-separation physical examination of September 1979, he reported that he continued to have knee pain. The military medical examiner observed that the pain was "occasional" in its frequency.
Subsequent to filing his claim, the appellant was afforded a VA examination in January 2003, in which X-rays showed mild degenerative changes with patellar spur. However, there is no indication that the examiner reviewed the appellant's claims file nor did the examiner provide an opinion as to whether the appellant's condition is related to active service. Thus, there is insufficient evidence to establish whether the appellant's bilateral knee condition is service connected. Therefore, the appellant must be afforded a new examination.
Because of the reasons listed above, a remand in this case is required. Accordingly, this case is REMANDED for the following:
1. The RO should ascertain if the appellant is in possession of, or is aware of the existence of any relevant VA, non- VA, or other medical opinions or other information relative to the bilateral knee that are
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not evidenced by the current record. The appellant should be provided with the necessary authorizations for the release of any records not currently on file.
2. Following receipt of the appellant's service personnel records and any new medical opinions relevant to the appellant's claims, the RO should afford the appellant a bilateral knee examination, to establish whether the appellant's current bilateral knee condition is a result of military service. The appellant's claims folder, and a copy of this remand, must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. The examiner should be specifically requested to render an opinion as to whether the appellant's currently diagnosed bilateral knee condition is the result of the appellant's active service.
The RO is advised that it should ensure that any medical opinion generated as a result of this remand contains a complete and comprehensive response to the inquiry posed above. Failing such a complete and comprehensive response, the claims folder will be remanded to the RO for further inquiry. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.).
3. Following such development, the RO should review and readjudicate the claim. If any such action does not resolve the claim, the RO shall issue to the appellant a
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Supplemental Statement of the Case. Thereafter, the case should be returned to the Board, if in order.
The RO and the appellant are advised that the Board is obligated by law to ensure
that the RO complies with its directives, as well as those of the appellate courts. It
has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when-it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998).
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 v.S.C. §§ 5109B, 7112).
Vito A. Clementi
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).
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